Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 19, 2022
CASE NO(S).:
OLT-22-004028
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant: Stuart Wright
Applicant: Cairnwood Developments Inc.
Subject: Consent
Description: MV & Consent application to facilitate the development of 8 new town houses
Reference Number: B010-2022WELL
Property Address: 78 Dorothy Street
Municipality/UT: Welland/Niagara
OLT Case No.: OLT-22-004028
OLT Lead Case No.: OLT-22-004028
OLT Case Name: Wright v. Welland (City)
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject: Consent
Reference Number: B011-2022WELL
Property Address: 78 Dorothy Street
Municipality/UT: Welland/Niagara
OLT Case No.: OLT-22-004029
OLT Lead Case No.: OLT-22-004028
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject: Consent
Reference Number: B012-2022WELL
Property Address: 78 Dorothy Street
Municipality/UT: Welland/Niagara
OLT Case No.: OLT-22-004030
OLT Lead Case No.: OLT-22-004028
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Subject: Minor Variance
Reference Number: A30-2022
Property Address: 78 Dorothy Street
Municipality/UT: Welland/Niagara
OLT Case No.: OLT-22-004031
OLT Lead Case No.: OLT-22-004028
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Subject: Minor Variance
Reference Number: A31-2022
Property Address: 78 Dorothy Street
Municipality/UT: Welland/Niagara
OLT Case No.: OLT-22-004032
OLT Lead Case No.: OLT-22-004028
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Subject: Minor Variance
Reference Number: A32-2022
Property Address: 78 Dorothy Street
Municipality/UT: Welland/Niagara
OLT Case No.: OLT-22-004033
OLT Lead Case No.: OLT-22-004028
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Subject: Minor Variance
Reference Number: A33-2022
Property Address: 78 Dorothy Street
Municipality/UT: Welland/Niagara
OLT Case No.: OLT-22-004034
OLT Lead Case No.: OLT-22-004028
Heard: October 5, 2022 by Video Hearing
APPEARANCES:
Parties Counsel
Cairnwood Developments Inc. Patrick Maloney
Stuart Wright Self-Represented
MEMORANDUM OF ORAL DECISION DELIVERED BY S. deBOER ON OCTOBER 5, 2022 AND ORDER OF THE TRIBUNAL
1This matter had been scheduled for a one-day hearing commencing October 5, 2022, to consider the Appeal by Stuart Wright (the “Appellant”) under s. 53(19) and 45(12) of the Planning Act due to the City of Welland (the ”City”) Committee of Adjustment’s (the “COA”) decision to approve consent Applications for the property municipally known as 78 Dorothy Street (the “Subject Lands”) and minor variance Applications (collectively the “Applications”) on such property in relation to Zoning By-law No. 2017-117.
2The Tribunal was recently advised that a Settlement had been reached between the Parties, as such, a request was made by the Parties for an order of the Tribunal, approving the consent Applications and the minor variance Applications.
3The proposed consent application is requesting that the Subject Lands be severed to allow the construction of four (4) Townhouse dwellings on the Subject Lands. Each Townhouse will have an accessory building dwelling unit that will have access from the side or rear yard.
4At the commencement of the Hearing, the Tribunal was made aware that the agreement between the Parties included the elimination of the balcony setback as there would not be any balconies permitted above the ground floor. With the elimination of this requested variance, the Tribunal ruled that the amended application was minor in nature and no further notice would be required pursuant to s. 45(18.1.1) of the Planning Act. The minor variances being requested were:
a. Lot 1 (Parts 1, 2 and 3): i. Minimum Exterior Side Yard – Reduce from 1.0 metre to 0.6 metre (“m”) (- 0.4 m); ii. Building Height – Increase from 11.0 m to 11.5 m (+0.5 m); iii. Parking Setback from Street – Reduce from 5.8 m to 0.0 m (-5.8 m)
b. Lot 2 (Parts 4, 5 and 6): i. Minimum Lot Frontage – Reduce from 6.0 m to 5.2 m (-0.8 m) ii. Maximum Lot Coverage – Increase from 50% to 52% (+2.0%) iii. Building Height – Increase from 11.0 m to 11.5 m (+0.5 m) iv. Parking Setback from Street – Reduce from 5.8 m to 0.0 m (-5.8 m)
c. Lot 3 (Part 7): i. Minimum Lot Frontage – Reduce from 6.0 m to 5.2 m (-0.8 m) ii. Maximum Lot Coverage – Increase from 50% to 52% (+2.0%) iii. Building Height – Increase from 11.0 m to 11.5 m (+0.5 m) iv. Parking Setback from Street – Reduce from 5.8 m to 0.0 m (-5.8 m)
d. Lot 4 (Part 8): i. Building Height – Increase from 11.0 m to 11.5 m (+0.5 m) ii. Parking Setback from Street – Reduce from 5.8 m to 0.0 m (-5.8 m)
SITE CONTEXT
5The Subject Lands are located in the City of Welland within the Regional Municipality of Niagara. The Subject Lands are currently vacant and are located on the corner of Dorothy Street and River Road. The property had a single detached dwelling at some point; however, it has been over 20 years since the dwelling existed. The Subject Lands have a frontage of 23.77 m on Dorothy Street and 23.29 m on River Road. The proposed development will have a lot frontage facing Dorothy Street.
6The surrounding neighbourhood has a mix of two and three-storey detached dwellings along with one four-storey apartment building. The Subject Lands are within the urban boundary of the City of Welland and considered to be within the “Built Up Area”.
PLANNING EVIDENCE
7The Tribunal heard land use planning opinion evidence from one witness, that being Craig Rohe. The witness was qualified by the Tribunal to provide detailed contextual and land use rational to support the Settlement.
8The Tribunal entered the following items as exhibits for the Settlement Hearing:
- Exhibit No. 1 Notice of Hearing
- Exhibit No. 2 Minutes of Settlement
- Exhibit No. 3 Combined Applicant Book of Documents
9Mr. Rohe described the proposal’s regard for matters of provincial interest; consistency with the Provincial Policy Statement 2020 (the “PPS”); conformity with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (the “Growth Plan”); Region of Niagara Official Plan (the “NOP”); City of Welland Official Plan (2011) (the “COP”) and the City of Welland Comprehensive Zoning By-law No. 2017-117 (the “ZBL”).
10The Tribunal heard that the Applications are consistent with the directives of the PPS 2020. Mr. Rohe took the Tribunal through specific policies including policy 1.1.3.1 that Settlement Areas are the focus of growth and development within Ontario communities; policy 1.1.3.5 requiring that municipalities establish and implement minimum targets for intensification and redevelopment of built-up areas; policy 1.4.1. that an appropriate range and mix of housing types and densities are available to meet prescribed growth targets; and policy 1.6 that urban development must occur on urban services and that existing infrastructure should be maximized before expansion occurs. Mr. Rohe concluded that the Applications are consistent with the PPS 2020.
11Mr. Rohe opined that the Applications conform with the Growth Plan, specifically policies 2.2.1.2 (c) requiring that, within settlement areas, growth is to be focused in delineated built-up areas; policy 2.2.2.1 states that 50% of growth within the Regional Municipality of Niagara is to occur in a built-up area; policy 2.2.6 requiring a mix of housing forms is provided through new development. Mr. Rohe opined that the development of the lot with Townhomes is an appropriate development and conforms to the Growth Plan.
12Mr. Rohe then took the Tribunal through the NOP and how the Subject Lands are within the City of Welland’s Urban Area Boundary and are a part of the Built-Up Area. Mr. Rohe demonstrated to the Tribunal that the Applications conform with the growth objectives of 4.A.1, specifically objective 4.A.1.1 directing the majority of growth to existing urban areas; objective 4.A.1.2 directing a significant portion of the future growth to be in the built-up area; objective 4.A.1.6 building compact, mixed use and transit supportive communities in the built-up area; objective 4.A.1.7 reducing dependence on automobiles and supporting active public transportation and urban environments; and objective 4.A.1.12 growth in a manner that uses existing water and sanitary services.
13Mr. Rohe then demonstrated to the Tribunal that the Applications conform to policy 4.C.4 of the NOP as the proposed development is within the Built-Up Area and will contribute to the intensification target for the Built-Up Area.
14The Tribunal was taken through Chapter 11 of the NOP, specifically, 11.A.1 which encourages a variety of housing types within urban communities. The Applications provide a unique form of housing that is currently not available in the neighbourhood.
15Mr. Rohe opined and demonstrated that the Applications conform with the NOP.
16Mr. Rohe took the Tribunal through the COP and demonstrated that the Applications conform with s. 2 of the COP, specifically s. 2.3 that the development will contribute to a complete community and create housing supply; s. 3.4.4.1.C that the proposal conforms with the City’s strategic intensification within the Bult-Up Area. Policy 4.2.3.6 encourages infill and intensification within the Built-Up Area; Policy 4.2.2.2. contains direction for the Low-Density Designation and encourages new development to be at a density of 15-24 units per hectare through a mix of housing. Even through the proposed Development is higher than the density required, it was Mr. Rohe’s opinion that the consent Applications exceed the minimum density required.
17Mr. Rohe took the Tribunal through the City of Welland ZBL and the minor variances requested.
Minimum Lot Frontage Variance for Lot 2 and 3
18Pertaining to the minimum lot frontage on Lots 2 and 3, lot frontage is not specifically discussed within the COP. However, the direction is to the efficient use of residential land for compact urban development. Although the lot frontages are less than the minimum 6 m, the reduction request would facilitate the proper development and intensification of the Subject Lands. Mr. Rohe opined that this request does meet the general intent and purpose of the COP.
19As for the general intent and purpose of the ZBL, Mr. Rohe opined that the lot frontage variance is to ensure ample room is provided for the dwelling and also features such as driveways or landscaping. The reduction will provide similar floor area to the exterior units as well as a garage and driveway for appropriate parking spaces. Mr. Rohe stated that in his opinion, the variance request meets the general intent and purpose of the ZBL.
20Pertaining to the appropriate development of the Subject Lands, Mr. Rohe opined that the proposed development facilitates a uniform development of the Subject Lands and leads to the Subject Lands being developed to their full potential. The visual impact in lot frontage is negligible and will present a consistent design to the Subject Lands. The purposed development is appropriate for the Subject Lands.
21As for the variance being minor in nature, the requested variance will not have a pronounced impact on neighbouring properties, as such, Mr. Rohe opined that the variance is minor in nature.
Maximum Lot Coverage for Lot 2 and 3
22Pertaining to the intent and purpose of the COP, Mr. Rohe opined that the requested variance will contribute to a more consistent and appealing architectural design and will align with the overall direction of the infill and intensification of the Subject Lands. Mr. Rohe opined that the variance requested meets the general intent and purpose of the COP.
23Concerning the variance meeting the general intent and purpose of the ZBL, Mr. Rohe opined that the variance requested does meet this test due to the amount of lot coverage requested. The overall increase is 2.46 square metres and would be negligibly noticed by anyone in the public. There would not be any negative impact on the permitted use and will help facilitate necessary elements such as parking and landscaping.
24Mr. Rohe opined that the variance requested is desirable for the appropriate use of the land as it facilitates a uniform design of the development with identical elements.
25As the variance requested is 2.46 square metres, Mr. Rohe opined that the variance is minor and will not be noticeable in the proposed development and is not considered an overdevelopment of the Subject Lands.
Minimum Exterior Side Yard Setback for Lot 1
26Mr. Rohe opined that the requested side yard setback reduction does meet the general intent and purpose of the theme of the COP which is to plan for compact urban development within the Urban Area and Built-Up Area. Overall, the requested reduction is considered to facilitate a positive benefit in achieving housing and growth targets.
27Mr. Rohe opined that the variance does meet the general intent and purpose of the ZBL as the variance only applies to the small architectural bump out associated with the accessory dwelling access. The rest of the building maintains the required setback in the ZBL.
28Mr. Rohe opined that the variance requested is a small bump out and is a negligible visual impact as the projection is limited to the accessory dwelling entrance only. As such, the variance is desirable for the proposed development.
29Mr. Rohe opined that since the variance is for a small portion of the western side of the structure, the variance is minor in nature.
Maximum Building Height for All Lots
30Mr. Rohe opined that the requested height variance of 0.5 metres is for aesthetic purposes only to allow the architect to achieve the proper roof slope that would allow the development to blend into the existing neighbourhood. Policies within s. 4.2.2.2 place an emphasis on good design and architectural excellence and as such, this variance does allow this to occur. Mr. Rohe opined that the variance meets the general intent and purpose of the COP.
31Mr. Rohe opined that the variance does meet the general intent and purpose of the ZBL as the Proposed Development will not facilitate a fourth storey of development and the request is for aesthetic and architectural purposes only. The intent of the roof pitch is considered to be within the general intent and purpose of the ZBL.
32Mr. Rohe opined that the variance requested is desirable for the appropriate development as it will allow for a more aesthetically pleasing roofline. The proposal is consistent and compatible with the rooflines in the neighbourhood.
33Mr. Rohe opined that the variance is minor in nature as the 0.5 metres increase is for the purpose of the proposed roofline and will benefit the overall look of the development and is minor in nature.
Street Townhouse Dwellings – Parking within 5.8 metres of a Street
34The proposed dwellings will contain a primary and secondary unit, which will require two parking spaces. These spaces will be provided in tandem and are to be located within the garage and driveway.
35Mr. Rohe opined that the COP is silent on parking standards and are set out in the ZBL. Since the plan is silent on this issue, the request is considered to conform to the COP.
36Mr. Rohe opined that the variance does meet the general intent and purpose of the ZBL. The reduction from 5.8 m to zero m will not have a significant impact on the streetscape or neighbourhood as the driveway is eligible to be used for parking. Relief is for the provision of a second legal space which is to be provided for the inclusion of an accessory dwelling. This approach was preferred rather than the reduction of a second parking space per townhouse unit.
37Mr. Rohe opined that the variance is appropriate for the development of the Subject Lands. The Subject Lands are constrained in terms of developable area due to zoning and infrastructure setback. The requested variance provides needed flexibility to provide the required parking and limit the pressures on street parking.
38Mr. Rohe opined that the variance is minor in nature as it does not have a significant impact on adjacent development or the streetscape and is a commonly accepted development condition throughout the existing neighbourhood.
Section 51(24) – Draft Plan of Subdivision
39Mr. Rohe took the Tribunal through his evidence and opinion of s.51(24) of the Planning Act as consent applications are considered in the same manner as draft plans of subdivision. It was his opinion that the consent applications were relevant and appropriate to the criteria set out in the Act.
40The Tribunal finds that the Proposal before the Tribunal is an appropriate use of the Subject Lands and is consistent with the development of the neighbourhood. As such, the criteria needed to satisfy s. 51(24) of the Planning Act have been met.
Planning Position
41In conclusion, Mr. Rohe opined that the proposed development of the Subject Lands is permitted and an appropriate development which is compatible and will blend into the existing neighbourhood. The Applications are consistent with the PPS, conforms with the Growth Plan, conforms with the NOP and the COP. The requested minor variances for the Subject Lands meet the four tests as set out in the Planning Act and will facilitate an appropriate and desirable development on the Subject Lands. The proposal for consent meets the criteria as set out is s.51(24) of the Planning Act.
FINDINGS AND ANALYSIS
42Based on the evidence, the Tribunal accepts the unrefuted evidence and opinion of Mr. Rohe. The Tribunal finds the Applications before it, have regard to matters of provincial interest; the proposal is consistent with the PPS, conforms to the NOP and to the COP. The Tribunal has given regard to the decision of the COA and the information presented to it. The Proposal meets the four (4) tests of a minor variance as set out in s. 45(1) and meets the applicable criteria as set out in s. 51(24) of the Planning Act and a plan of subdivision is not necessary as per s.53 (19). The proposal represents an efficient form of land use and represents good planning overall.
ORDER
43THE TRIBUNAL having been asked to consider an application which has been amended from the original application, and the Tribunal having determined as provided for in subsection 45(18.1.1) of the Planning Act that no further notice is required;
44THE TRIBUNAL ORDERS that the Appeal is allowed, in part, and the variances to Zoning By-law No. 2017-117 are authorized.
45THE TRIBUNAL ORDERS that the Appeals related to Applications B010-2022WELL, B011-2022WELL and B012-2022WELL are allowed, in part, and provisional consent to convey, consent to create the easements and consent for a partial discharge of mortgage as set out in those applications is granted.
46THE TRIBUNAL ORDERS that approval of Applications B010-2022WELL, B011-2022WELL and B012-2022WELL are subject to the Conditions set out in Appendix “A” to this Order.
“s. deBoer”
S. deBOER
MEMBER
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
APPENDIX “A”
Conditions For Consent
B010-2022WELL
That a plan showing the location of the existing services relative to the proposed lot lines be provided to the Senior Project Manager – Development for approval. The plan must show that no services across the proposed lot line. The Applicant is responsible for the removal and/or relocation of any services in breach of this requirement.
That Consent Application File No. B011/2022WELL receive Final Certification of the Secretary-Treasurer concurrent with or subsequent to Consent Application File No. B010/2022WELL.
That final approval be received from the Committee of Adjustment for the City of Welland for any necessary Minor Variances.
That the Owner(s) prepay to the City of Welland a $300.00 tree prepayment.
That the Secretary-Treasurer be provided with a registrable legal description of the subject parcel, together with a copy and a digital copy of the Deposited Reference Plan, if applicable, for use in the issuance of the Certificate of Consent.
Confirmation of payment of outstanding taxes to the satisfaction of the City of Welland Finance Division.
That all Conditions of Consent be fulfilled by October 5, 2024.
B011-2022WELL
That a plan showing the location of the existing services relative to the proposed lot lines be provided to the Senior Project Manager – Development for approval. The plan must show that no services across the proposed lot line. The Applicant is responsible for the removal and/or relocation of any services in breach of this requirement.
That Consent Application File No. B010/2022WELL receive Final Certification of the Secretary-Treasurer concurrent with or subsequent to Consent Application File No. B011/2022WELL.
That final approval be received from the Committee of Adjustment for the City of Welland for any necessary Minor Variances.
That the Owner(s) prepay to the City of Welland a $300.00 tree prepayment.
That the Secretary-Treasurer be provided with a registrable legal description of the subject parcel, together with a copy and a digital copy of the Deposited Reference Plan, if applicable, for use in the issuance of the Certificate of Consent.
Confirmation of payment of outstanding taxes to the satisfaction of the City of Welland Finance Division.
That all Conditions of Consent be fulfilled by October 5, 2024.
B012-2022WELL
That a plan showing the location of the existing services relative to the proposed lot lines be provided to the Senior Project Manager – Development for approval. The plan must show that no services across the proposed lot line. The Applicant is responsible for the removal and/or relocation of any services in breach of this requirement.
That Consent Application File No. B011/2022WELL receive Final Certification of the Secretary-Treasurer concurrent with or subsequent to Consent Application File No. B010/2022WELL.
That final approval be received from the Committee of Adjustment for the City of Welland for any necessary Minor Variances.
That the Owner(s) prepay to the City of Welland a $300.00 tree prepayment.
That the Secretary-Treasurer be provided with a registrable legal description of the subject parcel, together with a copy and a digital copy of the Deposited Reference Plan, if applicable, for use in the issuance of the Certificate of Consent.
Confirmation of payment of outstanding taxes to the satisfaction of the City of Welland Finance Division.
That all Conditions of Consent be fulfilled by October 5, 2024.